Young v. State Compensation Com'r

• Decision Date: 13 May 1941
• Docket Number: 9187.
• Citation: 14 S.E.2d 774,123 W.Va. 299
• Parties: YOUNG v. STATE COMPENSATION COMMISSIONER et al.
• Court: West Virginia Supreme Court

14 S.E.2d 774

123 W.Va. 299

YOUNG v. STATE COMPENSATION COMMISSIONER et al.

No. 9187.

Supreme Court of Appeals of West Virginia.

May 13, 1941

Strother Herndon & Berry, of Welch, for appellants.

Hillis Townsend, of Charleston, for appellee.

FOX Judge.

H. H Young, an employee of Crozer Coal and Coke Company suffered an injury from a slate fall while working in the mines of his employer on December 14, 1939. He was forty-nine years of age at the time, had worked in the mines of his employer for fifteen years, and in the mine in which he was injured for five or six years. The circumstances connected with his injury are as follows:

The claimant Young and J. L. Baker were working together in coal which was ninety-one inches high. Overlaying this coal was a layer of draw slate of an average thickness of eight inches. Some time before the accident three holes had been drilled in the face of the coal in order to shoot the same, and what is known as the "middle or center shot" had been fired, leaving two holes known as "rib shots" to be thereafter fired.

It

is developed by the record that the practice is to fire the center shot, and then remove the coal which is loosened by that shot. Ordinarily, this provides a safe place to work because the overlaying draw slate is held up by the coal on the right and left. After the coal dislocated by the center shot is removed, and prior to the shooting of the rib shots a mine post is usually set to hold up the slate, and company rule No. 7, claimed to have been approved by the compensation commissioner, and proved to have been posted in the mine provides that, "A center prop is required in all places unless permission to omit same is granted by the foreman." After the center shot had been fired, and while Young and his helper, Baker, were removing the coal from the center, mine foreman Carnes and his assistant Blevins came into the room. Carnes, Blevins, and Baker all testify that Young was directed by Carnes to set a center post, which direction, presumably, was expected to be complied with after the coal loosened by the center shot had been removed. Young states that he did not hear this instruction. He also testifies that he could not read, and had never heard of the rule quoted above, nor of another rule, No. 11, which provides that "After a shot has been fired, the employee before starting work shall make a careful examination of the roof and coal as to their safety." After Carnes and Blevins left the room, and after Young and his helper had loaded the coal at the center, the rib shots were fired. The mine post had not been set, and shortly after that, while Young was removing coal loosened by the rib shots, the slate fell and he was injured.

Under these circumstances Young applied for compensation, and a temporary award was made to him on January 27, 1940. His employer objected to the award, a hearing was had, and the order awarding compensation was affirmed by the commissioner and later upheld by the appeal board. From the action of the appeal board, the employer prosecutes this appeal.

The objection to the award is based upon two propositions: (1) That the employee was guilty of wilful misconduct within the meaning of Code, 23-4-2, and (2) that the employee was guilty of wilful violation of the employer's safety rules within the meaning of the same section of the Code.

There is no direct proof in the record that the rules relied upon were approved by the compensation commissioner, although it is stated in brief of counsel that they were so approved. Counsel for claimant make no point of this omission in employer's case, and it seems clear that the rules were posted in the mine and a copy thereof is filed with the record. So we think we are justified in treating the case as one in which the rules in question were approved by the compensation commissioner, and were duly posted as required by law, leaving only the question of whether Young had actual notice of the rules. Code, 23-4-2, uses the word "wilful" in connection with misconduct and disobedience to rules and regulations, and the authorities seem to uphold the proposition that before one can wilfully violate a statute or a rule he must first have knowledge of the same. Wilfulness, implying premeditation and intent, must necessarily rest upon knowledge.

In Carbon Fuel Company v. Compensation Commissioner, 112 W.Va. 203, 164 S.E. 27, it was held that "Willful violation by an employee of a statute designed for his protection is willful misconduct under Code 1931, 23-4-2 which forbids compensation for an injury caused by...